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Academic

: Less than the Least

Banking on Bankruptcy--Skeel

By David Skeel and Bill Stuntz

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This op-ed by equity fund manager Scott Sperling in today's Wall Street Journal makes an interesting case that the Obama administration's handling of Chrysler and GM is actually evidence of capitalism at work. In my view, he's right that the restructuring of these companies has some similarities to how things would play out if the government weren't cramming down its own preferred plans. Both companies would have filed for Chapter 11, and would have been restructured. But the op-ed strikes me as very misleading in its suggestion that restructuring of Chrysler in particular can be squared with the bankruptcy laws. In talking about Chrysler, Sperling seems to suggest that it's fine to give employees, retirees or anyone else (including current stockholders, presumably) a large stake in the new company, so long as they aren't allowed to keep everything they have now. That is, he seems to forget the rules of priority, which say that the senior lenders are required to be paid first. When he turns to General Motors, on the other hand, he suddenly remembers the priority rules. The recalcitrant bondholders really aren't entitled to anything (or much of anything), he argues, because the government, as senior lender, is entitled to be paid first.

In my view, he's right about GM and wrong about Chrysler. The government's commandeering of the Chrysler bankruptcy, and rewriting of the priority rules, has laid the groundwork for a lot of mischief in the future.
 
Also on the bankruptcy front, Cleary Gottlieb lawyer extraordinaire Lee Buchheit and I have a little op-ed today arguing for a new approach to the financial distress of large, systemically important financial institutions. We propose that lawmakers provide for a 60-90 day interim period as a prerequisite to bankruptcy proceedings. In my view, the existing bankruptcy framework, this proposal, or the enactment of special bankruptcy provisions aimed at large nonblank financial institutions are each preferable to the current administration proposal, which would dramatically expand the FDIC's authority and would continue the strategy of relying on bailouts. I hope to outline these thoughts in more detail in future posts and commentary.
 

Full post as published by Less than the Least on May 19, 2009 (boomark / email).

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